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Amy Howe for SOTUSBloglooks at the Supreme Court's disposition yesterday of Hernandez v. Mesa, which involved the shooting of a Mexican citizens by a U.S. border officer along the U.S./Mexico border.

The Court asked the parties to brief the question whether the Hernandez family can rely on the Supreme Court’s decision in Bivens v. Six Unknown Named Agents (1971), which held that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights.

As Howe summarizes:

"In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are “special factors counselling hesitation in the absence of affirmative action by Congress.” And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are “well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment – which, the court seemed to suggest, could be preferable to deciding the “sensitive” and potentially “far reaching” Fourth Amendment question.

The court disagreed with the lower court’s conclusion that Mesa was entitled to qualified immunity from the family’s Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isn’t relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the family’s claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand."

For a distinctively more biting assessment of the decision by Elie Mystal on Above the Law, click here.